Wonson and Comcare (Compensation)
[2019] AATA 2779
•20 August 2019
Wonson and Comcare (Compensation) [2019] AATA 2779 (20 August 2019)
Division:GENERAL DIVISION
File Number: 2016/4658
Re:Sue Wonson
APPLICANT
ComcareAnd
RESPONDENT
DECISION
Tribunal:Deputy President J W Constance
Date:20 August 2019
Place:Sydney
The reviewable decision made on 20 June 2016, being the decision of Comcare to affirm its earlier determination denying liability to compensate Ms Wonson in respect of the claimed injury, is affirmed.
.............................[sgd]...........................................
Deputy President J W Constance
CATCHWORDS
WORKERS COMPENSATION – application for review of decision to affirm earlier determination denying liability to pay compensation to Applicant in respect of claimed injury – where Applicant suffered a “disease” within the meaning of the Safety, Rehabilitation and Compensation Act 1988 (Cth) s 5B – adjustment disorder with depressed and anxious mood – whether Applicant for purposes connected with her employment made a wilful or false representation(s) that she did not suffer, or had not previously suffered, the disease – whether Applicant suffered the disease “as a result of reasonable administrative action taken in a reasonable manner in respect of [the Applicant’s] employment” – refusal to reclassify leave – Applicant would not have suffered disease but for reasonable administrative action – decision under review affirmed
LEGISLATION
Safety, Rehabilitation and Compensation Act 1988 (Cth)
CASES
Comcare v Drinkwater (2018) 260 FCR 150
Comcare v Martin (2016) 258 CLR 467
Comcare v Martinez (No 2) (2013) 212 FCR 272
Commonwealth Bank of Australia v Reeve (2012) 199 FCR 463
Griffiths v Australian Postal Corporation (2018) 158 ALD 298
Griffiths and Australian Postal Corporation [2017] AATA 1025Keen v Workers Rehabilitation and Compensation Corporation (1998) 71 SASR 42
SECONDARY MATERIALS
American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (5th ed, 2013)
REASONS FOR DECISION
Deputy President J W Constance
20 August 2019
A: INTRODUCTION
Ms Wonson commenced employment by the Department of Human Services as a Case Officer in the Child Support Agency in 2004.
In October 2015, Ms Wonson lodged a claim for compensation[1] in respect of an injury described as “psychological and physical injury”, which she claimed to have suffered as a result of workplace “bullying & harassment from 2010 to current”.[2] Her claim was made under the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the Act).
[1] Exhibit R1 at 353.
[2] Exhibit R1 at 355.
Comcare determined that it was not liable to pay compensation in respect of the claimed injury. Ms Wonson requested this be reconsidered. On 20 June 2016, Comcare decided to affirm its earlier determination.[3] I will refer to the decision to affirm the determination as the “reviewable decision”. In September 2016, Ms Wonson applied to the Tribunal to review the reviewable decision.[4]
[3] Exhibit R1 at 533.
[4] Exhibit R1 at 1.
For the reasons which follow, the reviewable decision will be affirmed.
B: BACKGROUND
Unless otherwise stated, the findings of fact in these reasons are made on the basis of the evidence of Ms Wonson.
Ms Wonson is 47 years old.
On completion of her secondary education Ms Wonson worked in various positions, including as a shop assistant and in administrative roles. She completed courses in keyboarding, office procedures and receptionist duties.
There are two children of Ms Wonson’s first marriage. The marriage ended in divorce in 1998. In 2000, Ms Wonson remarried.
[Paragraph deleted.]
In 2003, Ms Wonson undertook further part-time study and obtained a Certificate IV in Community Services (Welfare). From January 2003 until October 2004 she was employed as a case worker.
On 18 October 2004, Ms Wonson was employed as a case officer in the Child Support Agency. In December of that year she passed the entry level programme for the Child Support Agency and was assigned to a debt management team. She enjoyed her work.
Ms Wonson worked in several teams. From 2010 onwards she experienced difficulties in her workplace to which I shall refer later in these reasons. As a result she lodged the claim for compensation on 15 October 2015.
C: THE RELEVANT PROVISIONS OF THE SAFETY, REHABILITATION AND COMPENSATION ACT 1988 (CTH)
Subsection 14(1) of the Act provides:
(1) Subject to this Part, Comcare is liable to pay compensation in accordance with this Act in respect of an injury suffered by an employee if the injury results in death, incapacity for work, or impairment.
“Injury” is defined in subsection 5A(1) to mean:
(a)a disease suffered by an employee; or
(b)an injury (other than a disease) suffered by an employee, that is a physical or mental injury arising out of, or in the course of, the employee’s employment; or
(c)an aggravation of a physical or mental injury (other than a disease) suffered by an employee (whether or not that injury arose out of, or in the course of, the employee’s employment), that is an aggravation that arose out of, or in the course of, that employment;
but does not include a disease, injury or aggravation suffered as a result of reasonable administrative action taken in a reasonable manner in respect of the employee’s employment.
Subsection 5A(2) provides:
(2) For the purposes of subsection (1) and without limiting that subsection, reasonable administrative action is taken to include the following:
(a)a reasonable appraisal of the employee’s performance;
(b)a reasonable counselling action (whether formal or informal) taken in respect of the employee’s employment;
(c)a reasonable suspension action in respect of the employee’s employment;
(d)a reasonable disciplinary action (whether formal or informal) taken in respect of the employee’s employment;
(e)anything reasonable done in connection with an action mentioned in paragraph (a), (b), (c) or (d);
(f)anything reasonable done in connection with the employee’s failure to obtain a promotion, reclassification, transfer or benefit, or to retain a benefit, in connection with his or her employment.
“Disease” is defined in section 5B:
(1) In this Act:
disease means:
(a)an ailment suffered by an employee; or
(b)an aggravation of such an ailment;
that was contributed to, to a significant degree, by the employee’s employment by the Commonwealth or a licensee.
(2) In determining whether an ailment or aggravation was contributed to, to a significant degree, by an employee’s employment by the Commonwealth or a licensee, the following matters may be taken into account:
(a)the duration of the employment;
(b)the nature of, and particular tasks involved in, the employment;
(c)any predisposition of the employee to the ailment or aggravation;
(d)any activities of the employee not related to the employment;
(e)any other matters affecting the employee’s health.
This subsection does not limit the matters that may be taken into account.
(3) In this Act:
significant degree means a degree that is substantially more than material.
“Ailment” is defined in subsection 4(1):
ailment means any physical or mental ailment, disorder, defect or morbid condition (whether of sudden onset or gradual development).
Relevant also to this application is subsection 7(7):
(7) A disease suffered by an employee, or an aggravation of such a disease, shall not be taken to be an injury to the employee for the purposes of this Act if the employee has at any time, for purposes connected with his or her employment or proposed employment by the Commonwealth or a licensed corporation, made a wilful and false representation that he or she did not suffer, or had not previously suffered, from that disease.
D: THE ISSUES
The following issues require determination:
(1)Did Ms Wonson suffer an “ailment” or “an aggravation of such an ailment” within the meaning of the Act?
(2)If so, was the ailment or the aggravation “contributed to, to a significant degree” by her employment by the Department of Human Services, and therefore a “disease” within the meaning of the Act?
(3)If so, did Ms Wonson at any time, for purposes connected with her employment or proposed employment, make a wilful and false representation that she did not suffer, or had not previously suffered, from that disease?
(4)If not, was the disease suffered “as a result of reasonable administrative action taken in a reasonable manner in respect of [Ms Wonson’s] employment”?
(5)If so, and Ms Wonson did suffer “an injury” within the meaning of the Act, did she give notice of the injury to Comcare in accordance with section 53 of the Act?
E: ISSUE 1: DID MS WONSON SUFFER AN “AILMENT” OR “AN AGGRAVATION OF SUCH AN AILMENT” WITHIN THE MEANING OF THE ACT?
Evidence of Ms Wonson
Ms Wonson provided statements dated 17 November 2015[5] and 16 April 2017[6] and gave evidence at the hearing.
[5] Exhibit R1 at 370.
[6] Exhibit A1.
The condition for which Ms Wonson claimed compensation in her application was a “psychological and physical injury”.[7] On the basis of her evidence, I am satisfied that she is claiming for a psychological injury[8] of which there are some physical signs and symptoms.
[7] Exhibit R1 at 355.
[8] Exhibit A1 at [187].
After a meeting in November 2010 with Mr Cartledge, the manager of the Wollongong office of the Agency, Ms Wonson experienced difficulties at work which led to her making a “bullying & harassment complaint” to the People Advisory Centre (PAC) within the Department.[9] This complaint was made in January 2012.
[9] Exhibit A1 at [53].
In mid-July 2012, Ms Wonson was absent from work for two days. Her general practitioner certified that her absence was “due to work related stress”.[10] During the following three years, several incidents took place at work which Ms Wonson believes caused her to become depressed.
Evidence of Medical Practitioners
[10] Exhibit A1 at [70].
Dr Rao, General Practitioner
In a certificate dated 11 November 2015, Ms Wonson’s general practitioner, Dr Rao, diagnosed her as suffering “severe anxiety/Depression/stress”.[11] On 7 December 2015, Dr Rao reported that her diagnosis of Ms Wonson’s condition was “reactive depression and anxiety”. Dr Rao described the depression as “moderate to severe”, and both the stress and anxiety as “severe”.[12]
[11] Exhibit R1 at 361.
[12] Exhibit R1 at 461.
Dr Chow, Consultant Psychiatrist
Dr Chow assessed Ms Wonson in December 2015. He provided reports dated 5 January 2016[13] and 9 August 2017[14] and gave evidence at the hearing.
[13] Exhibit R1 at 500.
[14] Exhibit R3.
Dr Chow reported on 9 August 2017 that, in his opinion, Ms Wonson suffered from a major depressive disorder being an aggravation of an underlying condition suffered in 2003, 2008 and 2011.
Dr Smith, Consultant Psychiatrist
Dr Smith examined Ms Wonson in May 2016 and May 2017. He provided reports dated 31 May 2016[15] and 19 May 2017[16] and gave evidence at the hearing.
[15] Exhibit R1 at 536.
[16] Exhibit A2.
In the opinion of Dr Smith, in May 2017 Ms Wonson was suffering from an adjustment disorder with mixed depressed and anxious mood. In view of the length of time Ms Wonson had experienced the condition, he deemed her prognosis for recovery to be poor.[17]
[17] Exhibit A2 at 8.
Dr McDonald, Consultant Psychiatrist
Dr McDonald assessed Ms Wonson on 8 December 2015 and 2 August 2016, and reviewed additional documentation in August 2017. He provided reports dated 23 December 2015,[18] 11 August 2016,[19] and 8 August 2017.[20] Dr McDonald was unavailable to give evidence at the hearing.
[18] Exhibit R1 at 488.
[19] Exhibit R12.
[20] Exhibit R11.
In the opinion of Dr McDonald, in August 2017 Ms Wonson was suffering a chronic adjustment disorder with depressed and anxious mood.[21]
[21] Exhibit R11 at 7.
Ailment suffered by Ms Wonson no later than 11 November 2015
On the basis of this evidence, I am satisfied that Ms Wonson was suffering from an ailment by no later than 11 November 2015, being an adjustment disorder with depressed and anxious mood. She was still suffering from this ailment when she was reviewed by Dr Smith in May 2017.
On the basis of the evidence of Ms Wonson, I am satisfied that she continues to suffer from the ailment. This is supported by the opinion of Dr Smith that in 2017 her prospects of recovery were poor.
F: ISSUE 2: WAS THE AILMENT “CONTRIBUTED TO, TO A SIGNIFICANT DEGREE” BY MS WONSON’S EMPLOYMENT BY THE DEPARTMENT OF HUMAN SERVICES, AND THEREFORE A “DISEASE” WITHIN THE MEANING OF THE ACT?
Evidence of Ms Wonson
[Paragraph deleted.]
In October 2001, Wonson gave birth to her third child. Sometime in 2002 or 2003, Dr Rao diagnosed Ms Wonson as suffering postnatal depression.
In 2004, Ms Wonson and her husband purchased their first home. She was happy about this move and decided to cease antidepressant medication as she “was feeling OK”.[22]
[22] Exhibit A1 at [25].
For at least the first year of Ms Wonson’s employment by the Agency she enjoyed her work. When she attended her monthly performance reviews she was told that she was meeting all expectations.
In either 2005 or 2006, Ms Ozinga became Ms Wonson’s team leader. Communication between the two was strained and Ms Wonson found her difficult to work with. She was afraid to approach Ms Ozinga for responses to her (Ms Wonson’s) emails. Ms Ozinga would ignore her in team meetings.
In approximately 2006 or 2007, Ms Wonson moved to another debt collection team. Approximately one year later the debt collection teams were closed and Ms Wonson moved to a new team. She was excited by the change.
Ms Wonson was then moved to the Warrawong office. She did not know many people there but was able to make new friends in her team. In approximately 2008 or 2009, the Warrawong office was closed and all staff members, including Ms Wonson, were moved to the Wollongong office.
Ms Wonson’s team leader at the Wollongong office was Ms Lea Johnson. Ms Wonson described her time working in Ms Johnson’s team as follows:
The Team Leader Lea Johnson (”Lea”) kept giving the suicide calls. I was a Case Officer 4 and the escalated calls were for Team Leader/Managers. These calls were very distressing as customers would say I’m going to hang myself after this call I have a rope already waiting in the basement and now I know why men commit suicide, it’s because of you people and you people push men into killing their ex wives and children and I have a gun I’ll just shoot myself in the head.
Lea was also giving me difficult customers to case handle I felt like there was no equity with sharing the burden of the difficult customers with other case officers in the team. I approached Team Leader Lea and Acting Manager Senka but nothing was done to ease the burden they just said I’m a good Case Officer.
I would go home every night feeling exhausted. The suicide calls would go around in my head where I felt the pressure of thinking if I handled it correctly and I was hesitant and anxious to go to work the next morning in case there was news of a customer ending their life. I knew of one person already committed suicide because of the call they had with a case officer.
I would speak to the Team Leader Lea and Senka whom was acting up higher than a Team Leader of my concerns are continually being given escalated cases including suicide calls. Team Leader Lea said I was the best Case Officer to take these calls and although she knew it was Team Leader’s responsibility to take such calls, she thought I could handle it and at no time did she check on my welfare, provide training or organise a time for debrief after each occasion.
I noticed that I was experiencing body aches and pain within the joints and muscles. I also had headaches and some days migraines and for the first time in my life I had irritable bowel syndrome. The above symptoms were diagnosed as Fibromyalgia at a later time.
I was extremely pressured in Lea’s team. She would ask me to follow up everything for her that was team leader level work. The pressure was too much I did not enjoy work. I asked Manager, Senka, to change team; which was granted 3 months later with Senka saying if you leave this team you’ll never be a Team Leader. Prior to the grant to leave teams an EOI was advertised for a merit of order list to be an Acting Team Leader, I lodged an application.[23]
[23] Exhibit A1 at [36]-[41].
In 2008, Ms Wonson consulted her general practitioner, Dr Murthy, on several occasions as she was feeling upset and unwell. In addition to experiencing personal issues, she was feeling overwhelmed at work owing to the lack of support and increased workload and stress. She recommenced taking medication to relieve the stress. However, around the end of 2009 Ms Wonson was feeling well and more in control of her emotions. She was busy at work and motivated to continue her career.
On 12 November 2010, Ms Wonson met with her manager, Mr Mark Cartledge. This meeting was arranged at the request of Ms Wonson for her to obtain feedback on her expression of interest to be an acting team leader and also to provide feedback on her current team leader. Ms Wonson described the conduct of the meeting as follows:
… I sat down first at a long table and Mark sat to my immediate left (no one else was in the room). Mark said to me, “You start.” I asked for my feedback for the EOI so it could assist me in improving personal development. Mark said, “What do you want to know?” I gave an example of my current Team Leader Tim who was successful in the EOI. I said that Tim told me of his EOI application score and that was good enough to be in the Team Leader pool. I said to Mark that I had the same score as Tim and wanted to know why I didn’t make the Team Leader pool.
Mark said, “Brownie points to you Sue” and pushed his chair (using his feet away) from the table and slouched very low in the chair, spreading his legs wide apart. By the body language and his comment I knew this wasn’t going to go anywhere and I said to Mark, “I’m ending the meeting now, I didn’t like your comment. I think you are not here to willingly provide feedback and I am leaving now.” I left the meeting in shock, disbelief of his actions that came from an EL2 Manager. I felt belittled when he said ‘Brownie points to you’ and when he pushed his chair back I got scared that he may get more aggressive …[24]
[24] Exhibit A1 at [45]-[46].
On 7 March 2011, Ms Wonson attended a mediation meeting with Mr Cartledge. A representative of the human resources department and a union representative were also present. During the mediation Mr Cartledge stated that he had no recollection of his meeting with Ms Wonson on 12 November 2010.
In September 2011, Ms Wonson was moved to a new team under Ms Ozinga. Ms Wonson felt isolated in this team as she was not included in team communications and activities. She was offended by Ms Ozinga’s use of inappropriate language and by her relating personal and non-work matters in team meetings. After about four weeks she asked Mr Cartledge if she could be moved to another team. Her request was refused.
On 17 January 2012, Ms Wonson made a complaint to the Department’s PAC concerning the refusal of her request to be moved to a new team as well as Ms Ozinga’s behaviour towards her. For the following several months Ms Wonson was distressed by the manner with which her complaint was dealt.
Ms Wonson did not attend work on 12 and 13 July 2012. Upon her return she submitted a medical certificate stating that her absence was a result of work-related stress. On 17 July 2012, Ms Wonson attended a meeting with her team leader, Ms Eagar, to discuss the events which led to her taking this leave. Several meetings followed during which Ms Wonson was informed that complaints had been made about her conduct. She was told by Ms Eagar that she needed to learn how to take directives from those occupying the position of team leader and above, and that she had no right to provide feedback in respect of anyone holding a position above her own.
Ms Wonson described her feelings following these meetings as follows:
Libby’s comments shocked me. I felt no matter what I say it is not going to be heard. I felt weak and depleted. I had no strength to keep fighting this that I became very submissive. I just wanted it all to end. I started to nod my head yes in further meetings.
Another incident that happened during the meetings with Libby, is where she was aggressively repeating I need to submit to Mark. The pressure overcame me and I cried. Libby stood up and sternly said, “Your [sic] acting like a child. I am going to turn off the lights and lock the door so no one can come in and see you and don’t come out until you stop crying. I expect that you will be in here for at least half an hour before you come out.” This has scarred me as Libby followed through with her threats and it made me feel extremely frightened at work more than I have ever been before.[25]
[25] Exhibit A1 at [76]-[77].
In 2012, Ms Wonson made a claim for workers compensation in which she claimed that she had been bullied and harassed by Mr Cartledge and Ms Eagar. She later withdrew the claim as she was afraid she would be subjected to further bullying behaviour.
On 21 March 2013, Ms Wonson received a telephone call from a customer during which he threatened to find and kill her. When he asked to speak to the team leader, Ms Eagar refused to take the call and told Ms Wonson to go back and defuse the call herself. Ms Wonson was unsure as to how she should deal with the call and transferred it to the complaints area.
Following the call, Ms Wonson spoke to Ms Eagar in accordance with office protocol when a death threat has been received. She was told by Ms Eagar that she should be experienced enough to leave work at work and to go home immediately. Ms Wonson went home in a distressed state. She felt unsupported and started to worry for the safety of her family as a result of the death threat. The police were involved and spoke to the customer.
On 8 April 2013, Ms Wonson asked her team leader if she could have a break from dealing with priority sensitive cases, being those cases where a customer could be aggressive, continually complaining or threatening self-harm. She was told that she could have a three-day break only. When Ms Wonson arrived at work the following day she found that she had a sensitive case assigned to her. She felt upset and anxious that she was not being listened to.
In her statement, Ms Wonson said:
… I was now scared to be working under Libby. Going to work made me extremely nervous as not knowing what more Libby would do to me. My anxiety was so high I had never felt like that before and I was extremely sad and I became very quiet in the team. There was laughter in the team around me but not from me as I felt alone.
… I felt isolated around the corner from my team, my condition Fibromyalgia not being taken seriously and was put directly under the cold air-conditioner which increased my pain daily.[26]
[26] Exhibit A1 at [107]-[108].
In May 2014, Ms Wonson was admitted to hospital for a period of five weeks with an undiagnosed illness. On the first day of her return to work, Ms Wonson was told by her new team leader, Ms Ozinga, that arrangements had been made for her to see a Dr Paul for a return-to-work appointment in which it would be discussed how to incorporate her work into her part-time hours and how she could be supported through the recovery from her illness. She was not told that this appointment would have any bearing on her future employment.
On 22 July 2014, Ms Wonson attended the appointment with Dr Paul. During that appointment he conducted a physical examination of Ms Wonson. When Ms Wonson questioned why this was necessary, Dr Paul informed her that if she did not continue with the examination it would be viewed as non-compliance and she could lose her job.
Immediately after the appointment, Ms Wonson returned to work and told Ms Ozinga that Dr Paul had told her it was a fitness for duty examination to see if she could remain employed. Ms Ozinga said that she was surprised at what Ms Wonson had been told. She later told Ms Wonson that her grievances were with Dr Paul and that she was not to speak to her (Ms Ozinga) concerning the issue any further as it had been finalised. Later, Ms Wonson learned that she had been given incorrect information in relation to the report which had been requested from Dr Paul.
Following the discussions concerning the appointment with Dr Paul, there were several instances when Ms Ozinga treated Ms Wonson inappropriately and unfairly. This caused Ms Wonson to feel belittled and scared of being in Ms Ozinga’s team. Ms Wonson was also concerned by the inappropriate language used by Ms Ozinga in the workplace. She requested that she be moved to another team, which was done about one month later.
In September 2015, an issue arose as to Ms Wonson’s request to use flex or recreation leave credits as sick leave. A meeting held to discuss this resulted in Ms Wonson becoming extremely distressed and unable to continue working that day. She was crying and felt belittled in front of her team. Her request to be able to leave work early was refused. She consulted her general practitioner and subsequently lodged the claim for compensation the subject of these proceedings.
In April 2017, when Ms Wonson made her statement, she was consulting Drs Rao and Lai. She said that “[t]he psychological injury has affected my everyday living and I feel sad, upset, unmotivated and unsupported. I have not been able to return to work since September 2015. I have ongoing panic attacks, poor sleep and regular nightmares, poor attention and concentration. I am very anxious at the thought of returning to my workplace”.[27]
[27] Exhibit A1 at [187].
At the hearing, Ms Wonson gave evidence that she had not undertaken any paid employment since September 2015. She has continued to consult Dr Rao.
Report of Dr Rao, General Practitioner
In her report of 7 December 2015, Dr Rao stated that the current condition suffered by Ms Wonson appeared to be due to ongoing difficult workplace issues.
Evidence of Dr Smith, Consultant Psychiatrist
On 19 May 2017, Dr Smith reported, in part:
In regard to the notations made by Dr Rao related to the stressors she had experienced in her personal life these are in my opinion quite separate from the untoward events she experienced at her place of work. Having experienced a pre-existent Postnatal Depression, that had fully resolved as well as multiple psychosocial stressors, she was coping quite well and was free of a psychiatric disorder up until she experienced the untoward events at her place of work. While she may have been rendered more likely to have experienced a psychiatric disorder in response to significant psychosocial stressors given her history it is my opinion that the substantial contributor to the development of her Adjustment Disorder with mixed Depressed and Anxious Mood was the untoward events she experienced at her place of work.
I respectfully disagree with the conclusion that there is “a high probability that Ms Wonson had continued to suffer from situational stressors at various levels and the incidents/situations at work and her perceptions of being bullied and harassed, caused a reaction effect to her underlying condition”. The history in my opinion is not consistent with such a conclusion.[28]
[28] Exhibit A2 at 7.
In his report, Dr Smith also expressed his opinion that:
·Ms Wonson has remained under the care of a competent clinical psychiatrist and has received appropriate pharmacotherapy;
·in many ways her mood had deteriorated since his earlier examination;
·Ms Wonson had substantially recovered from any pre-existent psychopathology by the time she commenced work at the Agency;
·she had fully recovered from any untoward events prior to 2010;
·the condition from which Ms Wonson was suffering at the time she claimed compensation was not a continuation of the conditions from which she suffered before 2010;
·the symptoms suffered by Ms Wonson from the beginning of 2010 are a completely new psychological condition that is not an aggravation of her earlier condition;
·there was no competing cause for the emergence of her psychiatric disorder between 2010 and 2015;
·“It is significant to note that there is consistency across the board in regard to the diagnosis made by [Ms Wonson’s] treating clinicians as well as independent examiners Dr Chow and Dr McDonald”.[29]
[29] Exhibit A2 at 6-8.
Evidence of Dr Chow, Consultant Psychiatrist
In his report of 5 January 2016, Dr Chow noted that it did not appear that Ms Wonson had significant workplace difficulties prior to the manager, Mr Cartledge, starting in 2010. Further, he was of the opinion that “there was minimal evidence to suggest that Ms Wonson had a significant personality disorder in her early life. … A lack of understanding of Ms Wonson’s difficulties and a perceived lack of leadership in settling the conflicts through an empathic approach led to an escalation of emotions and behaviours in all parties”.[30]
[30] Exhibit R1 at 504
After considering further documents provided to him by Comcare’s solicitors, Dr Chow reported on 9 August 2017 that there was evidence to suggest that Ms Wonson had a significant psychiatric history (prior to 2003) that had not previously been reported to him. He concluded:
It is my opinion her current psychiatric condition is a result of the escalated dynamic difficulties at work over the last few years. However it is also my opinion that the escalated dynamic difficulties are likely to be the result of her underlying major depressive disorder and the decompensation of her personality vulnerabilities.[31]
[31] Exhibit R3 at 5.
Report of Dr McDonald, Consultant Psychiatrist
In the opinion of Dr McDonald, the depression suffered by Ms Wonson in 2003, 2008, 2011 and at the time of his report was “a chronic condition of fluctuating severity that has been ongoing from at least 2001”.[32] Her employment by the Department was not a significant causative factor to her chronic disorder.
[32] Exhibit R11 at 7.
Discussion
Initially Drs Rao, Smith, McDonald and Chow agreed that Ms Wonson suffered an adjustment disorder to which her employment by the Department made a significant contribution. It was only after they had been supplied with additional material as to her history prior to 2010 that Dr McDonald and Dr Chow changed their opinions as to the diagnosis of Ms Wonson’s mental condition.
Although each of the three specialist practitioners provided a clear basis for his opinion, I prefer the opinion of Dr Smith that Ms Wonson had recovered from earlier bouts of depressive illnesses prior to suffering the adjustment disorder which he diagnosed her as suffering in 2016.
When cross-examined at the hearing, Dr Smith expressed the view that the real difficulties Ms Wonson began to experience in her work environment started when she was working with Mr Cartledge. This was in 2008. Dr Smith stated:
… I got a different perspective that irrespective of her untoward background history she had commenced working and was coping well up until the appointment of a superior to whom she felt quite intimidated and had difficulty relating to. She also had difficulty in relating to other superiors and against that background she also developed depressive symptoms of significance of these depressive symptoms, in my view, were quite significant to the point that she decompensated.[33]
[33] Transcript, 5 April 2018, at 279.
Dr Smith did not accept that the problems which Ms Wonson had faced up until 2008, and which were referred to by Dr Diana,[34] “tracked right through and [were] responsible for her decompensating in 2015”.[35] In his view, “the toxic environment that [Ms Wonson] was exposed to at work was a substantial contributor that caused her to decompensate, and that this was superimposed upon pre-existing psychopathology that was reasonably well-contained”.[36]
[34] In his report of 9 November 2008, forming part of Exhibit R10.
[35] Transcript, 5 April 2018, at 290.
[36] Transcript, 5 April 2018, at 294
Neither Dr Chow nor Dr McDonald satisfactorily explained why they considered the earlier psychiatric conditions had not resolved prior to November 2015 when Ms Wonson was diagnosed as suffering a psychiatric ailment, which was described initially as depression and later as an adjustment disorder.
G: ISSUE 3: DID MS WONSON AT ANY TIME, FOR PURPOSES CONNECTED WITH HER EMPLOYMENT OR PROPOSED EMPLOYMENT, MAKE A WILFUL AND FALSE REPRESENTATION THAT SHE DID NOT SUFFER, OR HAD NOT PREVIOUSLY SUFFERED, FROM THAT DISEASE?
G1. Claimed instances of wilful and false representation
Comcare alleges that Ms Wonson made relevant wilful and false representations on seven occasions as set out in the following 11 paragraphs.
Pre-employment medical assessment form dated 9 September 2004[37]
[37] Exhibit R1 at 17.
Ms Wonson completed this form as part of her application for employment by the Department as a client service officer. She handed the form to the medical adviser who examined her to assess her fitness for the position.
When Ms Wonson completed the form she answered “no” to the following two questions:
·Do you, or have you ever had … (7) Nervous or mental condition?
·Do you, or have you ever had … (8) Anxiety or stress reaction or depression?
Superannuation election form dated 29 September 2004[38]
[38] Exhibit R13.
Ms Wonson completed and signed this form in relation to her membership of the superannuation scheme associated with her proposed employment by the Department. She declared the answers she gave to be true and correct to the best of her knowledge and belief.
Ms Wonson answered “no” to the following question:
·In the LAST 5 YEARS have you had medical advice or treatment for any of the following … (16) Mental or nervous condition, anxiety state or any depression?
Medical assessment by Dr Paul on 22 July 2014
Ms Wonson attended the appointment with Dr Paul, a consultant occupational physician, as arranged by the Department. There is a dispute as to the precise purpose of this appointment, but it is agreed that it was in relation to her employment.
On 22 July 2014, Dr Paul reported that Ms Wonson denied any psychiatric history apart from postnatal depression suffered 11 or 12 years previously.[39]
[39] Exhibit R1 at 186.
Worker’s Compensation Claim Form dated 15 October 2015
In her claim for compensation the subject of these proceedings,[40] Ms Wonson answered “no” to the following question:
·Have you ever experienced a similar symptom, injury or illness, work-related or otherwise?
[40] Exhibit R1 at 356.
Earlier in the form, Ms Wonson described the condition for which she was claiming compensation as “psychological and physical injury”.[41]
[41] Exhibit R1 at 355.
Medical assessment by Dr McDonald on 8 December 2015
Under the heading Previous Psychiatric History, Dr McDonald reported that Ms Wonson informed him that she had suffered postnatal depression 14 years previously, and that she had experienced “a difficult emotional time in her 30s during a period of family dysfunction”.[42]
[42] Exhibit R1 at 491.
Medical assessment by Dr Chow on 16 December 2015
Dr Chow reported that Ms Wonson provided a psychiatric history of “postnatal depression when she was 30, received counselling and six months of medication, has been in remission since”.[43]
Request made 23 May 2016 for reconsideration of Comcare’s denial of liability[44]
[43] Exhibit R1 at 503.
[44] Exhibit R1 at 527.
In their request that Comcare reconsider the initial determination dated 7 January 2016, the solicitors for Ms Wonson relevantly stated:
The client completed the claim form and the pre employment forms to the best of her ability. She was of the view that she had suffered from post natal depression solely related to the birth of her son in 2003 and that was not what the question was asking her hence why she selected no.
If the client had intentionally mislead she would not have disclosed it to your Dr Chow or Dr McDonald.
The claimant had disclosed to Dr Chow that she had suffered post natal depression and has always been of the belief that was not a similar symptom, injury or illness as set out in question 33 of the claim form. She also was of the view that she also did not fall into the category on the pre employment medical declaration as in 2004 she was of good mental health.
G2: Ms Wonson’s evidence
The following exchange took place between Ms Wonson and Counsel for Comcare in relation to the answers she gave on the pre-employment medical assessment form:
You told us that you knew you had to tell the truth? --- Yes.
You told us that other people you knew would rely upon it? --- Yes.
You told us that you knew it was with respect to you having your employment confirmed? --- Yes.
You told us that you understood each of the instructions, both at the front page and also on that page? --- Yes.
You told us all of that? --- Yes.
So why didn’t you tell the truth when you filled out that particular number 7? --- I was going off my emotions and I was just very happy. And you just think forward. I was just thinking forward. It was a new me. It wasn’t the past me, it was a new me. And I was just thinking forward.
See, you know, sitting here with the tribunal now - - -? --- Yes.
- - - reading each of those instructions that we’ve looked at? --- Yes.
Let me ask you this? --- Yes.
In September 2004? --- M’mm.
Had you ever had a nervous or mental condition? Had you? --- Yes.
And so if we accept that you read and comprehended and understood this, it must follow that you knew that you were answering that truthfully? --- No.
Why didn’t you answer it truthfully? --- I told you.
Well - - -? --- When you go through there, I was just emotionally on a high and I was thinking positive and I was thinking of the future.[45]
[45] Transcript, 4 April 2018, at 164-165.
Further, Ms Wonson said that she did not trust the doctors who assessed her on behalf of her employer and that she made a conscious decision not to tell them her full medical history. In her opinion her personal issues were not a matter of inquiry.
G3: Discussion
In Griffiths v Australian Postal Corporation,[46] Flick J held that the following expression of the question posed by subsection 7(7) was correct:
The exclusion operates where the employee misrepresents that he or she did not suffer from that disease, namely the disease the subject of the present claim. If the claim is for a disease which is not the same as the disease previously suffered from, the exclusion does not apply.[47]
(Emphasis in original.)
[46] (2018) 158 ALD 298.
[47] Ibid at [25], citing Griffiths and Australian Postal Corporation [2017] AATA 1025 at [23].
This question simply restates subsection 7(7), which itself clearly provides that the disease referred to is the disease actually suffered by the claimant and which is the subject of the claim. As his Honour observed later in the judgement:
And even the terminology employed by (for example) a treating practitioner at the outset may itself be changed or refined as the claim for compensation progressed through the decision-making process. An initial diagnosis of a “disease” at the time the claim for compensation is made is not decisive of the correct identification of the “disease” which attracts the entitlement to compensation or the “disease” which is the subject of a representation.[48]
[48] (2018) 158 ALD 298 at [34].
Although Ms Wonson initially described the claimed condition as “psychological and physical injury”,[49] I have decided that the disease the subject of the present claim is an adjustment disorder with depressed and anxious mood. The American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, includes the following as the first diagnostic criterion for this condition:
The development of emotional or behavioral symptoms in response to an identifiable stressor(s) occurring within 3 months of the onset of the stressor(s).[50]
[49] Exhibit R1 at 355.
[50] American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (5th ed, 2013) 268.
Ms Wonson may not have been as forthcoming as she could have been in her answers on the several occasions referred to above. However, I am not satisfied that, on any of those occasions, Ms Wonson represented that she had not previously suffered from an adjustment disorder with depressed and anxious mood or a similar condition.
It is important to note that the requirements of subsection 7(7) are not met if the evidence goes no further than establishing that a claimant has made a false statement in a claim form or other document.
H. ISSUE 4: WAS THE DISEASE SUFFERED “AS A RESULT OF REASONABLE ADMINISTRATIVE ACTION TAKEN IN A REASONABLE MANNER IN RESPECT OF [MS WONSON’S] EMPLOYMENT”?
H1: Comcare’s argument
Comcare argued that each of the following four separate events was an administrative action which met the requirements of subsection 5A(1) of the Act, thus excluding the disease suffered by Ms Wonson from the definition of “injury” within that section:
·the team leader selection process in 2010;
·the counselling of Ms Wonson after her alleged refusal to follow a direction of her superior;
·the fitness for duty assessment carried out by Dr Paul in 2014;
·the decision made on 17 September 2015 not to reclassify Ms Wonson’s sick leave as flex or recreation leave.[51]
[51] Respondent’s Statement of Issues, Facts and Contentions dated 25 August 2017 at [4.12].
I will deal with the decision of 17 September 2015 first as Counsel for Comcare contended that this provided the strongest argument for the application of the exclusion in subsection 5A(1).
H2: When did Ms Wonson suffer the adjustment disorder?
As I have already decided that Ms Wonson suffered an adjustment disorder no later than 11 November 2015, each of the above actions were taken prior to that date and thus need to be considered.
H3: The decision made on 17 September 2015 not to reclassify Ms Wonson’s sick leave as flex or recreation leave
In considering whether action meets the requirements of the exclusionary provisions in section 5A, it is relevant to take into account the circumstances surrounding the action relied on.
Ms Wonson’s evidence
In her statement of 16 April 2017, Ms Wonson described the events leading up to, and including, the meeting of 30 September 2015:
On 17 September 2015 I had taken sick leave. Upon returning to work on 18 September 2015 found that my pay had been docked by 2 or 3 hours. I asked Acting Team Leader Elissa Fourtounas why my pay was docked. Elissa said it was because I had no sick leave available. I asked if it could be put as flex taken rec leave or out of my long service leave. Elissa said she would need to speak with Jodie Bonney before she makes a decision.
On 18 September 2015 an email was sent to me from Elissa stating she had made a decision to keep my leave the same which meant my pay would be docked.
On 18 September 2015 I sent an email to my Union Representative Leighanne Hunt asking if a Team Leader can make a decision to approve flex leave when sick leave is exhausted.
On 19 September 2015 I received an email from Leighanne saying the agreement states it may be approved by a Team Leader because this is something that is their policies for people with long term illnesses.
On 28 September 2015 I sent an email to both my Acting Team Leaders Elissa and Lisa Dodd stating what the agreement states it may be approved by a Team Leader because this is something that is their policies for people with long term illnesses.
On 28 September 2015 Lisa responded with I need to escalate my concern to Mark Cartledge.
On 29 September 2015 I responded to Lisa of my concerns about escalating my issues to Mark Cartledge due to a previous bullying complaint lodged against Mark. I advised Lisa that I would escalate the issue to Brenton Halliday has I don’t have the strength to keep fighting. In the email I said to Lisa that my depression has now escalated and I am struggling to come to work due to the lack of support with my ongoing illness and no understanding.
I said I feel even if I am ill I would be forced to come to work as I have a family to support. I specifically said in the email coming to work till I hope no further breakdown happens at work as I won’t be able to come back and it would lead to compensation which I am trying my hardest to avoid.
On 29 September 2015 Lisa responded by offering EAP and taking me off phone shift. Lisa said herself, Elissa and Jodie are more than happy to meet with me to discuss further. At the end of the email I was again left out where Lisa said the team celebrated both mine and Kate’s birthday. I felt again left out because no one told me a morning tea was being provided for my birthday they went ahead and celebrated without me there.
On 29 September 2015 I forwarded an email to both Elissa & Lisa informing them I was on the phone to EAP and I also spoke with Brenton and he said he would arrange a meeting between me and Jodie.
On 29 September 2015 Jodie Bonney sent me an email and she said she would arrange a meeting with me tomorrow and I could bring a support person. Jodie also asked how I was going.
On 30 September 2015 I went into the meeting with my support person Leighanne there was Lisa, Elissa and Jodie. Jodie said for Elissa to take notes of the meeting and when done I will get a copy emailed to me. I started by saying in the agreement it says anyone with a proven ongoing illness can have their sick leave when exhausted exchanged as flex or recreation leave. I asked Jodie I have proven documentation from my specialist I have an ongoing illness so why as per the agreement hasn’t my sick leave been approved as flex or recreation leave. I said I have flex hours available and recreation leave available and long service leave available. Jodie said Elissa made the decision not to approve my leave. I asked Elissa why she didn’t approve my leave exchange as I fall into the conditions in the agreement.
Jodie interrupted and said to Elissa, don’t answer that. I said to Elissa you spoke to Jodie before making the decision to not approve my leave type was the decision yours or Jodie’s. Jodie interrupted again and said to Elissa don’t answer that, then Jodie said it was all Elissa’s decision not to approve my leave exchange. I said to Jodie if you’re not going to let anyone answer my question why are we in this meeting. I said to Jodie as a Case Officer we are told to take accountability in our decisions at work and when a decision is made we have to explain how we came to that answer, I said you can’t tell Elissa not to answer, Jodie didn’t respond. I asked Lisa as my Team Leader which you prove my leave exchange request and if not why not. Jodie interrupted and said to Lisa don’t answer that.
By now my nerves in my body were extreme I started to shake inside as I was getting bullied again by Jodie not letting my Team Leaders respond to my question and knowing that Jodie knew of my bullying when in Sharon’s team. I couldn’t believe it was happening again and I broke. I started to cry and looked at Lisa and Elissa and said I have an illness I did not ask for, I work to pay bills and help with supporting my family I am asking for support from both of you as my Team Leaders for support and approve my leave request. I said to Elissa and Lisa to see things from my point of view and I have fibromyalgia (my voice was shaking) and said I am begging you as docking my pay now and in the future will put me in hardship and deeper depression and I’ll end up coming to work sick and am scared I will break down at work. Elissa and Lisa looked at me then looked at Jodie. Jodie said to Lisa and Elissa don’t answer.
I stood up crying and said you are leaving me no option but to claim compensation I feel like I’m going to break down now completely. No-one said anything. I said to Elissa and Lisa I have a phone shift now but I’m so upset I cannot answer phones, I asked if I could go home. Jodie said if I go home I will not get paid as I would be leaving under sick leave as it was my words I was stressed. Lisa said I have to go on the phones. I said to Lisa I can’t go home as I won’t get paid and go on phones but when a customer can hear my voice upset, crying and shaking it won’t be my fault if they complain. Lisa said are you saying you’re not fit to answer calls. I said yes it’s obvious I’m crying and breaking down in front of you. Lisa said I can stay off the phones but can’t go home and to sit at my desk for the remaining hours of the day before I go home. I said to Lisa everyone will see me crying Lisa said to stay off phones but still go back to my desk.
I said to Jodie you know the bullying I received when I Sharon’s team I can’t believe what’s happening now. You have forced me to lodge a compensation claim which I will do today after work. I’ll be going straight to my doctor. Jodie responded, “Don’t be like that Sue”.
Leighanne then said to Jodie, Lisa and Elissa it is clear Sue is extremely distressed I think Sue should leave the room, Jodie said yes I could, I left the room.
Before going to my desk I went to an empty room. I was shaking and crying I phoned my husband and told him what happened. David supported me and said enough is enough he couldn’t stand me getting bullied then coming home upset, crying and withdrawing from the family. He agreed I go to my doctor on the way home and lodge a compensation claim. I tried to settle myself as much as possible and went back to my desk, I just couldn’t stop crying and this was in front of my team I felt belittled.
After work I went straight my doctor and lodged a compensation claim.[52]
(Errors in original.)
[52] Exhibit A1 at [163]-[181].
During cross-examination the following exchange took place between Ms Wonson and Counsel for Comcare concerning the refusal to reclassify her leave:
And that what this was imposing upon you, that you expressed, was an inability for you to make ends meet? --- Yes.
Yes. So, the difficulty that arose for you in those circumstances was that if the financial pressure continued, that you expected that you won’t likely to continue with your work? --- Yes.
So, once that decision is made for you, did you then feel this is a road that I can’t pursue, I can’t continue to come to work, it’s all too much for me now? --- No, what I said in the meeting, I asked them all if they knew what fibromyalgia was. All of them had not looked it up. I asked them if they were doctors because you know with fibromyalgia you can’t just save your leave and then go on four weeks holiday once a year. It doesn’t work that way. So, to hear that they never even Googled what I had, how can they then come to that conclusion not knowing my illness? That’s what stressed me out. There is no support if they didn’t even bother looking at what fibromyalgia was.
Sure? --- That’s what hurt me and then it scared me that they don’t listen to me. They’re not concerned about the welfare of the worker, the employee. Jodie knew of all the history of bullying and then adding this on top.
This was the straw that broke the camel’s back, I think, you said to Dr McDonald? --- Yes
And before the laying of that straw, you felt if they accommodated you that you could continue to do your work? --- Yes, because they would have supported my illness. They would understand what it was.
Yes. You agree, don’t you, that through your own experience, and I presume you have Googled it on many occasion, that it’s a complex condition? --- Yes
…
And I take it that the position you found yourself in, immediately prior to these meetings in or about 29/30 September was that if they could accommodate you, there was no impediment to you continuing to do your work? --- Yes.
…
… I’m just saying that from your own perspective your belief was that they would have to support you to see you through this? --- I thought, as an employer, and look after their employees and know the illness. So, yes, I did expect that of them.
Yes? --- I was very shocked when they didn’t even know what I had
…
And, as I understand it, that it was during those meetings that you formed that view? --- They told me they didn’t look it up. They told me they only knew the name.
…
And after those meetings you left work, never to return again? --- Yes.
But before those meetings, and the issue about the reallocation, he felt that if they had accommodated you, being your fibromyalgia and the unknown condition, that you could have continued on with work without any difficulties at all? --- I was hoping so because I just got in that team.
That was your expectation, wasn’t it? --- Yes.
…
… So, in the absence of whatever took place in those meetings and what you came to understand, you believe that you could have soldiered on? --- I could have went back to work, yes.[53]
[53] Transcript, 3 April 2018, at 76-79.
Statement of Ms Fourtounas, Team Leader
Ms Fourtounas has been employed by the Department since 2010. She provided a statement dated 5 March 2018.[54] She did not give evidence at the hearing as Counsel for Ms Wonson did not wish to cross-examine her.
[54] Exhibit R9.
Ms Fourtounas has acted as a team leader within the Agency since 2013. Ms Wonson was a member of her team in 2015.
Ms Wonson was absent from work from 14 to 17 September 2015. On 17 September 2015, Ms Fourtounas received a voicemail message from Ms Wonson explaining that her absence was a result of pain associated with her fibromyalgia condition. Ms Fourtounas then classified Ms Wonson’s leave for the period as “personal leave with evidence”.[55] Personal leave is also referred to as sick leave.
[55] Exhibit R9 at [3].
Later, Ms Wonson asked Ms Fourtounas to change the classification of the leave to annual leave as she did not have any personal leave credits but did have annual leave available.
At the time it was within the delegation of Ms Fourtounas to classify the leave sought by Ms Wonson as annual leave. However, before making a decision on Ms Wonson’s request, Ms Fourtounas consulted Ms Bonney from human resources. This was a common practice to ensure consistency of decisions across teams in relation to such issues.
Ms Fourtounas decided not to change the classification of the leave as Ms Wonson had reported that she was sick and personal (sick) leave was the appropriate classification in those circumstances. She was aware that Ms Wonson was often absent as a result of her fibromyalgia and she was concerned to support Ms Wonson in managing the effects of that condition. She considered it to be in Ms Wonson’s interests that she maintain her other leave credits to allow her a sufficient chance of rest and recreation.
The meeting of 30 September 2015 was arranged as quickly as possible at the request of Ms Wonson. Ms Fourtounas was not rostered to work that day but attended to assist in meeting Ms Wonson’s request.
That meeting was the first occasion on which Ms Wonson had informed Ms Fourtounas that she was suffering from a psychological illness. Ms Fourtounas recalled that Ms Wonson was extremely upset after the meeting.
Evidence of Ms Bonney, Workforce Optimisation Manager
Ms Bonney provided a statement dated 3 August 2017[56] and gave evidence.
[56] Exhibit R5.
Ms Bonney came to the Wollongong Child Support Smart Centre in 2015. She was not a direct supervisor of Ms Wonson but had on occasion attempted to provide her with support in relation to the difficulties she was experiencing.
On 18 September 2015, Ms Fourtounas informed Ms Bonney that she was uncomfortable with changing the classification of the leave Ms Wonson had taken the previous four days from “personal leave with evidence” to recreational leave.[57] The reason Ms Fourtounas gave was that she wanted Ms Wonson to be able to access recreation leave for recreation and rest. Ms Bonney told Ms Fourtounas that it was a matter for her discretion as the team leader and that she supported her decision in relation to Ms Wonson.
[57] Exhibit R5 at [4].
Ms Bonney explained the policy behind the refusal to reclassify Ms Wonson’s leave:
Leave is rarely substituted in the way requested by Ms Wonson. I am aware that this has been done in exceptional circumstances, for example, terminal illnesses, in the past. Leave is generally granted in accordance with the purpose its intended and therefore annual leave is not usually substituted in order to allow for employees to maintain a bank of leave credits. My view is that not taking recreation leave from the office can actually intensify chronic illness. I was satisfied that Ms Fourtounas’ decision was made in Ms Wonson’s best interests. People are encouraged to maintain a bank of planned leave so they can take time off to rest. This is important to proactively manage the effects of chronic illnesses.[58]
[58] Exhibit R5 at [7].
At the time it was the practice of team leaders to consult with Ms Bonney and Mr Cartledge so that there was consistency in decisions in relation to the issue.
Ms Bonney attended the meeting with Ms Wonson on 30 September 2015. As Ms Wonson had requested the meeting there was no set agenda – it was intended that Ms Wonson have the opportunity to express her concerns.
Ms Fourtounas explained her decision to Ms Wonson and advised her that the decision was made with Ms Bonney’s agreement and was made in an attempt to support her with her health issues.
Ms Bonney probably told Ms Wonson that if she went home after the meeting she may not be paid owing to her lack of personal leave, but she denied that she would have put it as bluntly as Ms Wonson alleges.
Report of Dr McDonald, Consultant Psychiatrist
Following his assessment of Ms Wonson on 2 August 2016, Dr McDonald reported:
Ms Wonson provided the history that she took a week off work because of pain in late September 2015, and her work’s failure to grant her the specific leave entitlement that she requested was the “the last straw” which she claims was yet another example of bullying and harassment. She ceased work then and has not returned, and vows that she will never return to the Department of Human Services.[59]
[59] Exhibit R12 at 2.
What was the relevant “administrative action”?
In Commonwealth Bank of Australia v Reeve,[60] Rares and Tracey JJ said:
The action must be “in respect of” something that exists – the person’s employment. That is, the action must be something different to the duties and incidents of that employment … Rather, the administrative action in the exclusion must take the employment as a factum and operate in respect of whatever its duties, incidents, nature and tasks may be. Thus, “employment”, as used in s 5A, is concerned with the conditions in which the employee works, the terms of his or her engagement and his or her duties.
…
Thus, the specific references in s 5A(2) to a reasonable appraisal of the employee’s performance as well as reasonable counselling or disciplinary action taken, and reasonable suspension action in respect of the employee’s employment dispel any doubt about the width of, but do not constrain, the ordinary and natural meaning of “reasonable administrative action” in s 5A(1).[61]
[60] (2012) 199 FCR 463.
[61] Ibid at [60], [62].
Applying what was said by the Full Court, I am satisfied that the process of making a decision in relation to Ms Wonson’s request and the conveying of that decision to her constitutes relevant “administrative action” in this matter. The granting and classification of leave were part of the conditions of Ms Wonson’s employment and of the terms of her engagement.
In addition to reaching this conclusion by applying the provisions of subsection 5A(1), I am satisfied that the above action is taken to be “administrative action” in accordance with paragraph 5A(2)(f). Relevantly, this paragraph applies to action “in connection with” an employee’s failure to obtain a benefit; in this case, the benefit of having the leave taken classified in effect as paid rather than unpaid leave.
Was the administrative action “reasonable”?
I am satisfied that the action I have described was “reasonable”.
It was reasonable for Ms Fourtounas to refuse Ms Wonson’s request for reclassification of her leave for the reasons she stated, which are set out above. I am satisfied that the decision was made with the genuine intention of supporting Ms Wonson to manage her medical condition and in accordance with Departmental policy. I accept the evidence of Ms Fourtounas and Ms Bonney in this regard.
Was the administrative action taken in a “reasonable manner”?
The manner in which the action is taken must be “reasonable”; the Act does not require that it be faultless.
In Comcare v Martinez (No 2),[62] the Federal Court cited with approval the judgement of the Supreme Court of South Australia in Keen v Workers Rehabilitation and Compensation Corporation,[63] in which it was said:
Whether the administrative action was taken in a reasonable manner by the employer will depend upon the administrative action, the facts and circumstances giving rise to the requirement for the administrative action, the way in which the administrative action impacts upon the worker and the circumstances in which the administrative action was implemented and any other matters relevant to determining whether the administration [sic] action was taken in a reasonable manner by the employer.
[62] (2013) 212 FCR 272 at [83].
[63] (1998) 71 SASR 42 at [47]-[48].
I accept the evidence of Ms Fourtounas and Ms Bonney as to the manner in which the relevant action was taken.
Ms Fourtounas’ decision was considered and made after consultation with Ms Bonney. She then conveyed this decision to Ms Wonson. When Ms Wonson was not satisfied with the decision, Ms Fourtounas and Ms Bonney acceded to her request for a meeting to discuss the matter further. They did not simply take the view that a classification had been made and that no further discussion should take place. In view of Ms Wonson’s concerns this was a reasonable course to have taken.
Although I accept that Ms Wonson was genuinely upset by the conduct of the meeting and that she did not obtain the outcome she hoped for, I am satisfied that it was conducted in a reasonable manner.
A copy of the summary of the discussion had at the meeting is appended to the statement of Ms Fourtounas. I accept her statement that her recollection of what occurred at the meeting is consistent with the summary. Ms Fourtounas was not questioned as to its accuracy.
The summary discloses that the reasons for the decision (including the Departmental policy) were explained to Ms Wonson. She was advised that future applications for leave would be considered on an individual basis. Her concerns were acknowledged.
Future support for Ms Wonson in managing her illness was discussed. It was agreed that the People Support Team would be contacted that day in order to engage them and an external rehabilitation provider. Ms Bonney also advised Ms Wonson of the steps available to her to seek a review of the decision not to reclassify her leave and advised her that this was the appropriate course to take.
Ms Wonson had a support person of her choice present with her throughout the meeting.
Was the administrative action taken “in respect of” Ms Wonson’s employment?
In Comcare v Drinkwater,[64] the Full Court of the Federal Court said:
… The present case is not about Departmental directions as to how Mr Drinkwater was to do his job in his then position or about his duties in that job; and it did not, for this reason, involve operational action falling outside the exclusion.
In the present case, the relevant action was about transferring Mr Drinkwater to a different post or position from that which he then held in his employer’s employ… It was action that took Mr Drinkwater’s employment “as a factum”, to use the language of Rares and Tracey JJ in CBA v Reeve at [60]. … This action was plainly taken “in respect of” Mr Drinkwater’s employment because it was action directed specifically to his employment and taken in respect of his employment. A determination by the employer that the employee will move from his or her existing post to a new post in the employer’s employ involves administrative action specifically directed to that employee and specifically about that employee.[65]
[64] (2018) 260 FCR 150.
[65] Ibid at [69]-[70].
Applying the principles set out by the Full Court in Commonwealth Bank of Australia v Reeve and Comcare v Drinkwater, I am satisfied that the administrative action was taken in respect of Ms Wonson’s employment by the Department. The action was specifically directed to Ms Wonson’s employment and taken in respect of that employment.
Did Ms Wonson suffer the adjustment disorder “as a result of” the reasonable administrative action?
In Comcare v Martin,[66] the High Court considered the causal connection which is required to give rise to the operation of the exclusion in section 5A(1).
[66] (2016) 258 CLR 467.
The High Court said, in part:
Having regard to the text and structure of ss 5A and 5B, and consistently with the statutory purpose of the exclusion in s 5A(1), what is required to meet the causal connection connoted by the exclusionary phrase in s 5A(1) in its application to a disease within s 5A(1)(a) is therefore that the employee would not have suffered that disease, as defined by s 5B(1), if the administrative action had not been taken. That is to say, the causal connection is met if, without the taking of the administrative action, the employee would not have suffered the ailment or aggravation that was contributed to, to a significant degree, by the employee's employment.[67]
[67] Ibid at [47].
In paragraphs 94 and 95 of these reasons, I have set out in detail the evidence Ms Wonson gave as to the circumstances of her learning of the decision to refuse her request to reclassify her sick leave.
On the basis of this evidence, I am satisfied that the refusal to reclassify her leave and the subsequent meeting caused Ms Wonson very significant distress. I have accepted that, in fact, the action was taken in a reasonable manner. Nevertheless I am satisfied, on the basis of Ms Wonson’s evidence, that she perceived she was being treated most unfairly and that this had a lasting effect upon her.
I have taken into account that Ms Wonson consulted Dr Rao on the same day as the meeting.[68] On 7 December 2015, Dr Rao reported, in part:
At present Mrs Wonson has no capacity to work in her usual employment, with the current work place atmosphere and until the situation is rectified.[69]
[68] Exhibit R1 at 460.
[69] Exhibit R1 at 463.
I have also taken into account the evidence of Dr McDonald as to Ms Wonson’s condition when he assessed her on 8 December 2015, just over two months after her leaving work. In his report of 23 December 2015, Dr McDonald records the history taken from Ms Wonson which included details of the leave action.[70] Prior to the decision to refuse to reclassify her leave, Ms Wonson was prepared to continue in her employment; by December 2015 she believed that she could never work for the Department again.[71]
[70] Exhibit R1 at 490.
[71] Exhibit R1 at 492.
Dr Chow assessed Ms Wonson on 16 December 2015. During that assessment, Ms Wonson told Dr Chow that what she was told at the meeting of 30 September 2015 was “the trigger for her ceasing work” and that “she was very upset and therefore has not been back to work since”.[72]
[72] Exhibit R1 at 502.
At the times of their respective assessments, Drs McDonald and Chow diagnosed Ms Wonson as suffering an adjustment disorder.[73]
[73] Exhibit R1 at 493 and 505.
On the basis of the evidence of Ms Wonson (referred to in paragraph 131 above), and the evidence of Drs Rao, McDonald and Chow, I find that had the Department not refused to reclassify the leave as requested by Ms Wonson, she would have been able to continue working in the position she held at the Agency and would not have suffered the ailment which she did. Instead, she left work on 30 September 2015 and has not returned.
The causal connection between the reasonable administrative action and the condition suffered by Ms Wonson is established. Consequently, the condition suffered by Ms Wonson is not an “injury” within the meaning of the Act and she is not entitled to compensation in respect of that condition.
Having reached the above conclusion, it is unnecessary to consider the remaining administrative actions relied upon by Comcare.
I: CONCLUSION
Having decided that Ms Wonson has not suffered an “injury” as defined in the Act, it is not necessary that I consider the issue of notice under section 53.
The reviewable decision made on 20 June 2016, being the decision of Comcare to affirm its earlier determination denying liability to compensate Ms Wonson in respect of the claimed injury, will be affirmed.
I certify that the preceding 141 (one hundred and forty one) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance
........................................................................
Associate
Dated: 20 August 2019
Dates of hearing: 3, 4, 5 and 6 April 2018, 21 and 22 January 2019 Counsel for the Applicant: Mr L Grey Solicitors for the Applicant: Kells the Lawyers Counsel for the Respondent: Mr M Gollan
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